Guru Speak

Furthermore, in many cases this gives an advantage to the other party even though it may seem unfair. Instead of obtaining revenue from a transaction as expected, it can turn into the payment of compensation for damages to the other party, who happens to have better legal knowledge. Let's consider some real cases.

The owner of premises in a prime area of Bangkok allowed a fastfood operator to use her premises as a place of business with the expectation she would "receive a regular amount of remuneration".

This was written in the form of a short memo. The fastfood operation suffered continual losses, and no remuneration was ever paid to the owner of the premises. The owner claimed outstanding rent from the fastfood operator, but in his defence the fastfood operator claimed the owner was his jointbusiness partner and had granted the use of the premises as an investment. How would you judge this case?

A manufacturing company at an industrial estate sent an engineer to Europe for three months for training. The company spent a large amount of money for the training programme. After the engineer returned to Thailand, he resigned and joined a competitor. No written agreement was made between the company and the engineer when he was sent to Europe.

The company claimed reimbursement of all costs together with compensation. The engineer claimed the training was part of his employment welfare.

How would you judge this case?

A skilled software programmer signed an employment agreement with a reputable software company with a restriction clause stipulating if his employment was terminated for any cause, he would not work, own or act in any capacity in a business that might be in competition with the software company for a period of five years after leaving.

However, the programmer resigned and set up his own softwareprogramming business, so the company sought to enforce his compliance with the agreed restriction and claimed compensation. The programmer claimed the restriction caused undue hardship to him and was void and not enforceable. How would you judge this case?

A foreign individual leased some land in a resort town for 30 years, with an option to extend the lease for another two periods of 30 years each. All rent was prepaid on the date the lease was registered. Two years later, the foreigner died, and his heir claimed the right of succession in continuing the lease. As the price of the land was skyrocketing and there was a potential buyer for it, the lessor denied the right of succession to the heir and terminated the lease with an offer to refund a portion of the rent. There was no clause relating to succession in the lease agreement. How would you judge this case?

I do not intend, in this article, to reveal the answers I gave when mediating in these cases. That I will do in future articles. My main concern is to make readers aware that if agreements had been clearly made at the very beginning, with proper legal backup, no parties in the above cases would have had any dispute, and costs would not have been incurred in settlement.

I hope none of you is in a situation similar to any of those above at present.

Remember, personal trust is no longer reliable, particularly when one of the contracting parties is a corporate entity. Decisions can change whenever management changes. The personal commitment of a former manager may not bind the new manager. So make sure you get it right from the beginning!