Alf Witt

But do they owe their clients a 'duty of care' under Thai law?

Section 420 of the Civil and Commercial Code states that "A person who wilfully or negligently, unlawfully injures the life, body, liberty, property or any right of another is liable to make compensation". This is probably as near as you will get in Thailand to a law of Tort.

If you acept that lawyers are inclded in the description "persons" then I guess this answers your question.

Nominees don't have to be mentioned in the law because its meaning and intent is clear.

Lets look it up in a dictionary.

nom·i·nee

1) One who has been nominated to an office or for a candidacy.

2) A person or organization in whose name a security is registered though true ownership is held by another party.

I suggest we skip the meaning number 1 and concentrate on number 2.

When you use nominees it is assumed the one who uses them is the real owner. So if you have 49% foreign and 51% Thai are nominees. Then actually for the law (who knows about the dictionary too) it is 100% foreign ownership. And that is not allowed.

If you want to circumvent that too, you would need to find Thais that have enough money to invest in the business too, or somehow make them earn money before by giving them a job or some other creative way to obscure the truth.

Now lets look up the word naive. (Not personaly to posters but for the many people who believes a lawyer.)

I think it is good to discuss these issues.

Khun Jean,

I agree that it is naive to take the word of lawyers here on its face value which is why I am trying to gain an understanding of what the law actually is. That is easier said than done in Thailand. Most of the "nominee" issue that has come under scrutiny by the government has been in relation to the Foreign Business Act. I am quite convinced from studying that Act that it has no application to the ownership of land unless a farang is conducting a prohibited business of "trading in land". The Land Code defines trading in land as "the aquisition and disposal of land for commercial profit by sale exchange or conditional sale". In other words "operating a business".

For the ownership of land by a Thai company it is definitely wise not to have nominees involved, but given the historical situation persons in the position you described earlier need to have as detailed an understanding as possible as to how the law should be interpreted. If it ever came to farangs being directly targeted over the company land ownership issue then I would suggest that rather than try to sue your Thai lawyer you should be on the same side as him to put up a reasoned argument and fight that together.

The scenario I described earlier has Thai shareholders who are not nominees and as far as I can see that is perfectly legal. The problem may come if the Thai government define "alien" in terms of control of a business but this has not happened yet.

I know this thread is about lease and lease renewal but the logic of control of the company is to ensure future renewals of the lease granted by the company to the farang. As long as that can be achieved through the decision making power in relation to the company it matters very little who actually "owns" the company. Also the company does not die and as long as control is maintained it will not sell the freehold.

I'm certainly not advocating this for anyone getting into the market now but whether anyone with a company should rush into a change to leasehold is questionable. The land still has to be owned by someone and it is a judgment call whether to stick with the grey area company setup or put the ownership in the hands of an individual. What are you going to trust?

Point 'D' i dont agree with.

Using nominies in any company is illegal. It escapes because enforcement is not 100%, more like 1%.

Khun Jean,

This is often said but never substantiated. Can you quote the law on this? I have researched every way I can find possible and cannot find where it says what you claim.

There is no reference to nominee shareholders anywhere in Thai law that I have been able to discover.

The FBA is about operating businesses. Not about company structures. There is a difference (perhaps too subtle for some) between a "business" and a "company". A company is a legal entity and a business is the activity conducted by it. A company registered in Thailand will always be a Thai legal entity (by virtue of its registration) whoever its shareholders are. If it operates a prohibited business and it is owned either transparently (if that is possible) or through "nominees" more than 49% by foreigners then the individuals are in breach of the existing FBA, but the wrongdoing is in the foreigners "operating the business" not in using nominees per se and not simply for owning the company.

If you can find something in Thai law that says different then I am willing to be persuaded.

I am not persuaded just because samuiforsale says so. Some of the material on their website is very useful but their interpretation is not exactly spot on.

The trouble with all of these sources (law firms included) is that they have vested interests in what they want you to believe.

Just keep asking them as I do to produce the legal references that they are relying upon.

If I had more time I would detail my view complete with legal references, because I am prepared to substantiate my understanding. I am more than willing to listen (and perhaps accept) a different viewpoint but not if it is not supported by legal references.

I think it is in the interest of many farangs to have as full and accurate an understanding of this as possible. The lawyers on the forum have been spectacularly reticent about providing this. Samuiforsale goes some way towards this but I am uncomfortable with their interpretation and it looks to me that they have a hidden agenda somewhere.

I notice that Siam Legal who started this thread have also not bitten the bullet to clarify exactly what the law is AT PRESENT.

Easy.

There are two names on the contract that matter. The one who took the lease and the landowner.

After 30 years when the contract can't be renewed, who do you think will have the problem?

The lawyer for giving wrong advice 30 years ago?

If i had a lease with this 30+ construction adviced by a lawyer, i would stand in the front of his office tomorrow demanding a hefty compensation for his wrong advice. While it is still recent you might have a microscopic change you wil win. I'll bet it wil take a few years before a court decision is made.

Second. If you still think a company formed for the purpose of owning land is legal you have some reading up to do.

Here i am mean the large number of company formations that used nominies. Those are illegal and always were.

In Thailand the law is a law of its own kind. It is better to abide by it to stand a change. If you start bending it, good luck is what you need. Until recent people who did the company thing made a good profit. It worked because it had a quick turnover and it went unnoticed. Those people were the lucky ones. The ones who own it now with a company construction are not sleeping very well.

Bar stools are not comfortable so I never sit on them.

Khun Jean,

You made a general statement about the liability of lawyers in Thailand for wrongful advice. I was prepared to learn something new but it turns out that it was your statement that was reckless as you now contradict it by saying you would pursue compensation. It looks like it is you who needs to do some reading up or rather, I suspect, change your reading material. Unfortunately TV is full of ill-informed opinion and that is at its worst when it is stated as fact. There is a vast difference between saying that any attempt to sue a Thai lawyer for negligence could be a tough task which, depending upon the circumstances may or may not be so (so that is a matter of opinion but not a well founded one) and stating as fact that they cannot be held responsible.

Your understanding of the company land ownership issue also seems somewhat "wooly" to me but you are forgiven for that because nobody seems to be quite sure and, if you have been following the news reports, you will know that the politicians have been unable to agree on how the law should be amended to make it more certain. This is the point I was making. It has been, and remains, a grey area. As a matter of prudence anyone entering the market now may be advised to avoid it, but that does not address the situation that many people have been in over the years and glib statements do not help.

I would be very interested in Rick Levinthal the OP's take on this as he is a licensed American attorney working as an advisor to Siam International Legal Group. I tried a long time ago to get a reasoned response from Sunbelt but met with silence (again perhaps a reflection that no-one knows for certain, not even the lawyers, otherwise they would be being sued which was the second point I made).

Here is my understanding of the legal reality aquired from some very substantial reading on the matter, where possible from primary source material:

a)There is absolutely no obstacle to a Thai company owning land in Thailand per se.

B)A Thai company cannot be owned more than 49% by foreigners.

c)Ergo there is no obstacle to a Thai company owned up to 49% by a farang owning land. (Now, before you jump on me I know that the Land Office has been instructed to enquire into the source of shareholding funds etc. and also report to BKK if a company aquiring land is owned more than 39% by foreigners) but that is administrative direction and whilst it affects the practicalities it does not change the existing law on which the validity of the corporate ownership issue must be judged (especially in the circumstances you envisaged in taking a neglignce action against a Thai lawyer).

d)The nominee shareholder issue relates to the Foreign Business Act which is only about what type of business can be "operated" (word straight from the Act) by farangs. One of the prohibited businesses is "dealing in land". So if you operate a business whose business activity is dealing in land the Act provides penaties for any Thai who fronts for a farang and could you fall foul of the "nominee shareholder" issue (although these words are never used in the Act).

e)The FBA clearly states that these provisions are "for the purposes of" the FBA and don't therefore apply outside that Act. Unless a farang is operating a business which deals in land and using Thais to disguise his ownership the FBA has no application to the ownership, per se, of land by a Thai company.

OK So far?

f)So we have a Thai company which owns land. There is a house on the land which is owned by a farang. The Thai company has leased the land to the farang on a renewable 30 year lease. Nothing wrong with that per se.

g)The company is owned 49% by a farang and is structured so that he has "control" of the company's decision making process as distinct from "ownership" of the remaining 51% of the shares. (The main objective in this is to ensure that the lease is renewed at the end of the 30 year period). (Yes I know that some politicians would like to change the law to include control but they have not, so far got their way and if you are thinking about suing a Thai lawyer its the existing law that matters not what it may be in the future.)

h)The concept of the holding company, per se, does not exist in Thailand, so the company has to trade. It employs a housekeeper, gardner etc. and provides these services. It makes a small profit and a small dividend is distributed to its shareholdes (both farang and Thai).

This has all been established on the advice of a Thai lawyer.

Please explain to me, Khun Jean, the basis of your demand for hefty compensation?

As long as lawyers in Thailand are not responsible (accountable) for their advice the risk is 100% for the client.

Is that a fact? Thai lawyers are not responsible for their advice? I'd be interested to know your basis for that statement.

Lets see, who's names are on the contract?

There is your answer.

Wouldn't there be a few hundred or thousands of lawsuits for the advice given in the past. (Company formation to own land).

If it would work the same as in western countries there wouldn't be many law firms left.

Khun Jean,

I was dubious about your statement. Now I am doubly confused by your explanation. To what contract and names are you referring and what does that have to do with lawyers' liability for wrongful advice? Either they are liable in law or they are not. I would be very surprised if they were not liable but you have stated as a matter of fact that they are not. On what, please are you basing that statement or is it just a bar-stool opinion.

To answer your question about lawsuits. No there wouldn't be lawsuits because the ownership of land by a Thai company is legal and the farang shareholding issue, as far as I am aware, remains a grey area which has still not been clarified 100% and probably never will be.

As long as lawyers in Thailand are not responsible (accountable) for their advice the risk is 100% for the client.

Is that a fact? Thai lawyers are not responsible for their advice? I'd be interested to know your basis for that statement.

Reading recent press reports (Bangkok Post and Nation) about the evidence that is stacking up against Mr. T re his offshore shareholdings etc. I was wondering whether there is such a thing as a sub judice law in Thailand. Does anyone know?

I've just seen the post "50 mistakes men make when having sex" see: http://www.thaivisa.com/forum/index.php?sh...=131575&hl=

Which makes me think that the biggest mistake a man could make when having sex is to partner with a woman who has a list in her head of 50 things you can do wrong before you even start.

I told him last night, if he does it again I will leave.......

Mmm. Could it possibly be that's why he keeps doing it?

You were lucky. We lived for three months in a paper bag in a septic tank. We used to have to get up at six in the morning, clean the paper bag, eat a crust of stale bread, go to work down t' mill, fourteen hours a day, week-in week-out, for sixpence a week, and when we got home our Dad would thrash us to sleep wi' his belt.

Luxury. We used to have to get out of the lake at six o'clock in the morning, clean the lake, eat a handful of 'ot gravel, work twenty hour day at mill for tuppence a month, come home, and Dad would thrash us to sleep with a broken bottle, if we were lucky!

Well, of course, we had it tough. We used to 'ave to get up out of shoebox at twelve o'clock at night and lick road clean wit' tongue. We had two bits of cold gravel, worked twenty-four hours a day at mill for sixpence every four years, and when we got home our Dad would slice us in two wit' bread knife.

Right. I had to get up in the morning at ten o'clock at night half an hour before I went to bed, drink a cup of sulphuric acid, work twenty-nine hours a day down mill, and pay mill owner for permission to come to work, and when we got home, our Dad and our mother would kill us and dance about on our graves singing Hallelujah.

And you try and tell the young people of today that ..... they won't believe you.

I have never used it before but I'll make an exception this time. In the time honoured phrase of half the posters on this forum - "IF YOU DIDN'T LIKE IT WHY DIDN'T YOU PACK UP AND GO BACK TO WHERE YOU CAME FROM?"

OK, Mr. Hippo, I get the joke now. Your post is entitled "I just don't believe it", so, no matter what evidence is presented to you to prove you wrong you are not going to believe it.

So, to that extent the joke is on all of us (if that lets you save face).

Otherwise you remind me of the guy who admitted that he was wrong only once. That was the time when he though he had made a mistake but, in fact, he hadn't.

If you keep it going we've just got to assume that you are quackers.

Having a bad day, Rosie?

Not particularly, my little finger is broken, I've got Giardia, I haven't had a good crap in 3 days and the Metronidazole that I've been taking for the last week has made me nauseous 24/7 for the last 24 hours X 7.

My husky is shedding her entire undercoat - everywhere, I've been meaning to drop off papers at Immigration for the last 3 days but the grumbling in my stomach has kept me from doing so and the threat of that monster crap that always looms when it hasn't happened has kept me indoors for days. My wife still insists on putting food to rot in the magic cabinet and then she eats while telling me it won't kill me to do the same.

My cat barfs twice a day because he steals the dog's food and it doesn't sit well with him. My housekeeper throws away any paper that is important but leaves crap that isn't.

My neighbor has gotten into a do it yourself kick and has recently been doing construction. The faceless workers behind my house are still doing construction on the new house behind mine and now I can't walk around naked anymore for fear of shaking it at some 14 year old painting.

My dog ate the boy's toys out of the stroller and made <deleted>&$&$& mince out of the mosquito netting so now he comes back the other day with bites on his face. I've got tremendous gas that should require a no smoking sign and I'm fearful if someone lights a match or turns on the stove. My wife glares at me when I fart in bed and every fart is of the uncertain variety where you're just sure you should do it or not but not doing it becomes less of an option with each passing second.

How are you doing?

Hi Jeffrosner,

Is this diatribe copyright?

I'd love to use it on the next Indian tailor who grabs my hand and say's "How are you today, Sir?"

Just another point. Even if your assertion that the use of "a duck" in your statement can only refer to a specific duck the answer would be 5, not 3.

There are 2 ducks in front of "a duck" (so its position in line is now fixed at position 3 from the front). There are 2 ducks behind "a duck". If, as you insist that is the same duck being described, then we have 5 ducks and the "a duck" must be the duck in the middle.

Your argument is defeated even by your own "logic".

Three ducks have been described and we know what position that they are in.

If three ducks have been described and we know what position they are in where is the riddle? It becomes a meaningless statement. The riddle lies in the fact that, if you don't think logically about it, but just respond with your first impression you fall into the trap of thinking that there can only be three ducks in total.

Most people, when their error in thinking is pointed out, realise their mistake and that's where the "fun" (for want of a better word) lies.

However, the fun here is that you still don't get it, Mr. Hippo. (Or, I hope, you are still pretending not to get it).

What is it in the wording of your OP that makes you think that only 3 ducks have necessarily been described?

There are 2 ducks in front of a duck (OK, so far that is three ducks, I agree)

There are 2 ducks behind a duck (NB. you don't say "that duck") so that could now be a total of 3 ducks, 4 ducks, 5 ducks or 6 ducks because you don't specify that the duck in the second statement is the same duck as the one in your first statement. In fact it could be an infinite number of ducks becuse you do not specify how many ducks are in front of the second described duck. There is nothing in either English language or mathematics that necessarily requires the second duck you describe to be the same duck as the one described in your first sentence or phrase.

There can be a duck in the middle with any amount of ducks as long as the total is an odd number.

Just think of men running in a race. The man in third place is going to be thinking "Hey, there are two runners in front of me". The man who is third from last in the race is likely to be thinking, "Hey, there are still two runners behind me". So we have a situation where there are two runners in front of a man and two runners behind a man. Both individuals can be described as "a man", because that's what each individual is. But they are not the same man. If there are an odd number of runners in the race someone is in the middle. He is also a man because the race is only for men.

If you don't get it now, I give up.

There are two riding schools in Phuket, one between Chalong and Nai Harn not well run with scraggy horses and one at Laguna which I think is a bit better.

About a couple of hours run from Bangkok there is an area called Kao Yai national park where there is a very well run western style riding school. I think its called "Bonanza".

You should be easily able to find somewhere to keep a horse (or horses) pretty much anywhere in Thailand (except Bangkok).

*sigh* Ok,, kids here is your primer on what the whistle blowing means. I have lived through years of this in the parking garages of BKK:

1. Acknowledgment. a sharp blast or two to let you know he is on the job and has your back.

2. The approach. intermittant short blasts with slightly longer blasts to let you know your have lined up your back up approach to the parking spot. If you have erred, he will blast hard and long to let you know to start over.

3. The insertion. After you have a good line of sight into the parking spot, he will first start with slow and low blasts in regular intervals.

4. The buildup to finish. As you approach nirvana, he will blow hard and fast regular blasts, increasing in speed until a continuous blast is sustained.

5. The finish. After you've reached the right point, he will quit the furious blasting, give you one friendly toot and extend white gloved hand as he opens your door.

Got it?

I almost had an orgasm reading this explanation. Are you sure you get out enough, Chinthee?

So, you hear Patong is very gay? What does "gay" sound like?

On second thoughts, don't answer that. I don't think I want to know.

OK, whatever fancy explanation you use there is still an anomaly between the left/right perception and the up/down perception.

Just to make it more bizarre, try this. You look in the mirror and left seems to be right, but up is still up and down is still down. Now lie on your side and hold up a bottle of beer (or whatever) in your left hand. It now looks as if it is in your right hand, yes? This is so even although your vertical image did not change when you were standing upright and looking in the mirror. OK so far? So what's going on? Also, according to your earlier experience of "left" when viewed in the mirror appearing to be "right" your head should now be at the opposite side of the mirror, but it isn't. Why?

I'm reluctant to criticise powerful individuals in Thailand, especially if they could become Prime Minister, but I have to make an exception here.

This is the guy who thought his role as Interior Misister was to visit night-clubs and bars "in person" and close them down for minor breaches of his puritanical views. Instead of being the man who makes policy he wanted to be the man in jack boots kicking the doors in.

On one occasion in his role as Interior Minister he travelled south to Phuket from Bangkok, visited a very respectable "no-nonsense" music venue and closed it down. Why? Because a farang couple were moving to the music. Not "dancing", just "moving" in rhythm to the music and the place did not have a dancing licence. If he ever becomes Prime Minister there won't be a farang left in Thailand and Thailand as we know it will be a thing of the past, not only for farangs but for Thais also.

Put him in charge of a corrections home for delinquents or something. In charge of a country? No way.

I have never subscribed to the "if they do this I'll go" mentality, but if this man ever becomes Prime Minister I'll be on the next plane out after 12 years here.

Tell me its a joke someone, please.

My pet peeve is sitting in a bar in Soi 7 and having a finger jabbed in my back by eiether a toothless shoe-shine bloke or 3 year old kid selling chewing gum every 10 minutes.

You're not the only one. How do you think he became toothless?

Some people are taking this all a bit too seriously.

Weho............you are winning.

.....and he's making me chuckle too John. Keep it up Weho, you are right in what you've just said. Your comments are so apt and erudite.

I don't know about "erudite", but its certainly some form of "..ite". But, hey, the whole interchange is funny. It's good to read through a whole thread with a smile on your face and sometimes a chuckle. It takes a special talent to have strong feelings about a basket on another individual's motor cycle. Yeh, keep them coming Wacko, sorry Weho. I'm a fan (that's an enthusiast by the way, not one of those round things that blow air at you).

P.S. I guess if you are a smoker you also look for a motorcycle with an ashtray?

Weho, why are you living in Pattaya, if indeed you are?

All of your posts are negative in some way about the place, the food, the people in fact just about everything.

I agree Weho- all of your posts are compaints about almost every aspect of Thailand.

Is there anything indigenous to Thailand that you DO like? Besides Sizzler, Fuji and Roast Beef sandwiches, which you could find in your own country?

Pray tell- what was it about Thailand that made you decide to move here?

Could it have been the supermarket baskets in Carrefour?

it's a reflection, not an inversion.

The eye perceives the light reflected by the mirror.

The mirror does not reverse images, it reflects them.

That's my stab at it......After reflecting for a while.

That is just semantics. Whatever you call the phenomena why does it work from left to right but not from top to bottom?

There are a lot of intelligent minds on the forum so lets see who knows the answer to this one.

When you look in the mirror your image is reversed. If you hold something in your left hand it appears to be in your right hand in the mirror image. So why don't you also see your image upside down?

No, actually only the middle of the middle duck is in the middle.

Don't you have to have all your ducks in a row?

OK, lets settle this with something even Mr. Hippo should be able to understand. Replace the letter "D" with the letter "F". If you say I had a @uck last night and a @uck tonight is the same @uck?