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The Law of Contract in Myanmar

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The Law of Contract in Myanmar BRIGGS AND BURROWS THE LAW OF CONTRACT THE LAW OF CONTRACT OF IN MYANMARTHE LAW IN MYANMAR ADRIAN BRIGGS ANDREW BURROWS THE LAW OF CONTRACT IN MYANMAR ြမန်မာ&ိ(င်ငံ၏ ပဋိညာ0ဥပေဒ The Law of Contract in Myanmar by ADRIAN BRIGGS QC (Hon) Professor of Private International Law and Fellow of St Edmund Hall University of Oxford and ANDREW BURROWS QC (Hon) Professor of the Law of England and Fellow of All Souls College University of Oxford ြမန်မာ&ိ(င်ငံ၏ ပဋိညာ0ဥပေဒ ေအဒရီယန် ဘရစ်ဂ်စ် (QC (Hon)) ပ(ဂEလိကအြပည်ြပည်ဆိ(င်ရာဥပေဒ ပါေမာကJ &Kင့် စိန် ့အက်ဒ်မန် ေဟာလ်၏ ပညာNKင်အဖွဲRဝင် ေအာက်စဖိ( ့ဒ် တကUသိ(လ် &Kင့် အန်ဒ;<း ဘား;ိ(းစ် (QC (Hon)) အဂWလန်ဥပေဒ ပါေမာကJ &Kင့် ေအာလ် ဆိ(းစ် ေကာလိပ်၏ ပညာNKင်အဖွဲRဝင် ေအာက်စဖိ( ့ဒ် တကUသိ(လ် ေရးသားြပXစ(သည်။ © Adrian Briggs and Andrew Burrows 2017 The moral rights of the authors have been asserted Printed and bound in Great Britain by Ashford Colour Press, Gosport, Hampshire ြမန်မာ&ိ(င်ငံ၏ ပဋိညာ0ဥပေဒ ေအဒရီယန် ဘရစ်ဂ်စ် (QC (Hon)) ပ(ဂEလိကအြပည်ြပည်ဆိ(င်ရာဥပေဒ ပါေမာကJ &Kင့် စိန် အက်ဒ်မန် ့ ေဟာလ်၏ ပညာNKင်အဖွဲRဝင် ေအာက်စဖိ( ့ဒ် တကUသိ(လ် &Kင့် အန်ဒ;<း ဘား;ိ(းစ် (QC (Hon)) အဂWလန်ဥပေဒ ပါေမာကJ &Kင့် ေအာလ် ဆိ(းစ် ေကာလိပ်၏ ပညာNKင်အဖွဲRဝင် ေအာက်စဖိ( ့ဒ် တကUသိ(လ် ေရးသားြပXစ(သည်။ Preface In this book we attempt to set out and explain the law of contract in Myanmar by reference to the Contract Act 1872 and a small number of other statutes forming part of the body of Myanmar law. We have sought to identify, read, and understand all the reported decisions on contract of the courts of this country since 1900 and to use these to show how well developed, in general, the law of contract in Myanmar actually is. We cannot promise to have found everything (or to have understood fully everything which we did find) but we hope that our work will serve three primary purposes. The first and most important is to contribute to the restoration of legal education in the law schools of Myanmar. The law of contract is the foundation of all commer- cial law and a thorough understanding of contract law, and of contract law tech- nique, is the rock on which much of the law is built. We are painfully aware that the universities in particular, and those who worked and studied in them, had the most difficult of times while contact with the outside world was cut off. Though that un- happy state of affairs has come to an end, it will take a while for the law schools to make up the ground which was lost. As far as we can see, thinking and writing about contract law was limited, and means that today’s generation of teachers and students may need to be shown what can be done with the law of Myanmar. We hope that this book will prove useful to all those working in the universities. A second purpose is to provide a statement of Myanmar contract law to those working in Myanmar but outside the universities – in commerce and in law offices but also, perhaps, in courts and government offices – who need to know the current state of Myanmar contract law. We also suggest, with those in government as our audience, that there are some minor reforms of the 1872 Act that are worth considering. A final purpose is to explain the contract law of Myanmar to those from outside Myanmar but who have dealings with individuals and companies inside Myanmar. The more that is known about the laws of Myanmar, the more likely it is that con- tracts and other commercial relations will be regulated by the laws of Myanmar rather than by the laws of foreign countries. We have not been able to read the judgments of courts reported only in Burmese; if there are such judgments relevant to the general law of contract, they form no part of our account. Having said that, though, we were told that the Union Supreme Court does not publish large numbers of judgments on contract law; and it may be that we have missed little. If anyone reading this book were able to draw our atten- tion to judgments and other materials which we may have missed, we would be very grateful indeed. We were much assisted in this project and have several debts of gratitude to acknowledge. First and foremost are the members of staff of the law schools of Yangon University, Dagon University, and East Yangon University. We each had the opportunity to deliver lectures and classes at these universities, and the kindness of our reception by our colleagues in these law schools was wonderful. We would also viii Preface like to thank those students and others who came to our classes and honoured us by their presence. Next, thanks are due to those lawyers in practice in various capacities, in Myanmar, who spoke to us and answered our questions in 2015. We sought to find out how contract law – drafting, litigating – actually worked in practice; and to all those who gave us their time and the advantage of their opinions we are grateful. We have been encouraged by many people – mostly, but not all, lawyers – in Myanmar to produce this book. We do not name them here, though they will know who they are. All we can really say is that we hope they will consider our efforts to have been helpful to them. The work for this book was undertaken as part of the Burma/Myanmar Law Programme of the Oxford University Faculty of Law. We would like to thank the benefactors to that programme, especially Simon Makinson of Allen & Overy who has so generously encouraged and supported this project. We are also very grateful to Josh Htet of A&O who has assisted with the translation into Burmese of this preface and title pages. Considerable thanks are due to our excellent research assist- ant Krishnaprasad Kishakkevalappil: in particular, he produced a first draft of the history of the 1872 Act in Appendix 1 and he carried out the first trawl of the law reports, this done before AsianLii helped by making many of the useful series of law reports available on line. It is practically certain that, without this start, none of the rest of our work would have been possible. The Oxford University Press has kindly produced hard copies of the book as well as producing the electronic files which have enabled us to put up a professional version of this book on the internet. We would especially like to thank, from OUP, Alex Flach and Natalie Patey. We have found our work in, and concerning, Myanmar, enormously rewarding. Our visits to the law schools there, though sadly much too short, have been intensely enjoyable. Our opportunity to explore and reflect on the Contract Act, and to think about what it tells us about the wider common law of contract, was one which, it is fair to say, we had not seen coming until very recently. We have benefited from working together in a way which we had not previously done and had not expected. We have looked at the material, and have reported our views, from different (but, we hope, complementary) perspectives; and the process of coming to agreement has been stimulating. Andrew Burrows wishes to make clear that Adrian Briggs has done the bulk of the work and produced the first draft of our text, albeit that all the work done thereafter was collaborative. The entire process has been a happy one and we are each grateful to the other and to Myanmar for what has turned out to be such an intellectually rewarding project. It may be that a second edition of this book will be needed in due course. Anyone who finds fault with the text, or who wishes to draw our attention to things which we appear to have missed, is invited – please – to get in touch. We can be contacted most conveniently by e-mail ([email protected] andrew.burrows@law. ox.ac.uk) or, in person, next time we are able to travel to Myanmar. AB and AB Oxford December 1, 2016 နိဒါန်း ဤစာအ(ပ်တွင် က[&်(ပ်တိ( ့သည် ၁၈၇၂ ခ(&Kစ် ပဋိညာ0အက်ဥပေဒ&Kင့် ြမန်မာဥပေဒပင်မကိ(ယ်ထည်၏ အစိတ်အပိ(င်းအြဖစ် ပါဝင်ဖွဲRစည်းထားေသာ အြခားဥပေဒအနည်းငယ်ကိ( ကိ(းကား၍ ြမန်မာ&ိ(င်ငံ၏ ပဋိညာ0 ဥပေဒကိ( ချြပNKင်းလင်းရန် dကိXးစားထားပါသည်။ က[&်(ပ်တိ( ့သည် ပဋိညာ0စာချXပ်စာတမ်း&Kင့် ပတ်သက်eပီး ၁၉၀ဝ ခ(&Kစ်မKစ၍ ဤ&ိ(င်ငံNKိ တရား;ံ(းများ၏ စာချXပ်စာတမ်း&Kင့်ပတ်သက်သည့် ထ(တ်ြပန်ေဖာ်ြပ ထားeပီးြဖစ်ေသာ ဆံ(းြဖတ်ချက်များ အားလံ(းကိ( ဆန်းစစ်ေဖာ်ထ(တ်ရန် &Kင့် ဖတ်;hနားလည်ရန် dကိXးစားေလ့လာထားeပီးြဖစ်eပီး ၎င်းဆံ(းြဖတ်ချက်များကိ( သံ(းကာ ြမန်မာ&ိ(င်ငံ၏ ပဋိညာ0ဥပေဒသည် မည်မjဖွံR eဖိXးeပီး ြဖစ်သည် မြဖစ်သည်ကိ( ြပသရန် dကိXးစားထားပါသည်။ က[&်(ပ်တိ( ့သည် အရာအားလံ(းကိ( NKာေဖွေတွR NKိထားသည်ဟ((သိ( ့မဟ(တ် က[&်(ပ်တိ( ့ ေတွR NKိထားသည့် အရာအားလံ(းကိ( အြပည့်အဝ နားလည်သည်ဟ() ကတိမြပX&ိ(င်ပါ။ သိ( ့ေသာ် က[&်(ပ်တိ( ့၏ ေဆာင်ရွက်ချက်များသည် အဓိက ရည်ရွယ်ချက် ၃ ခ( ကိ( ြဖည့်ဆည်းေပး&ိ(င်မည်ဟ( ေမjာ်လင့်ပါသည်။ ပထမဆံ(း&Kင့် အေရးdကီးဆံ(းမKာ ြမန်မာ&ိ(င်ငံ၏ ဥပေဒေကျာင်းများတွင် ဥပေဒပညာရပ်များ ြပန်လည် ထိန်းသိမ်းေဆာင်ရွက်&ိ(င်ေရးအတွက် အေထာက်အက<ြဖစ်ေစရန် ြဖစ်ပါသည်။ ပဋိညာ0ဥပေဒသည် စီးပွားက<းသန်းေရာင်းဝယ်ေရးဥပေဒများအားလံ(း၏ အေြခခံအ(တ်ြမစ်ပင် ြဖစ်သည်။ ထိ( ့အြပင် ပဋိညာ0ဥပေဒ &Kင့် ပဋိညာ0ဥပေဒနည်းပညာကိ( ခေရေစ့တွင်းကျ နားလည်ြခင်းသည် ဥပေဒအများစ( တည်ေဆာက်ထားသည့် ေအာက်ခံေကျာက်စိ(င်ေကျာက်တံ(းပင် ြဖစ်သည်။ ြပင်ပကမmာ&Kင့် အဆက်ြပတ်ခဲ့သည့် အချိန်တွင် အထ<းသြဖင့် တကUသိ(လ်များ &Kင့် ယင်းတကUသိ(လ်များတွင် အလ(ပ်လ(ပ်ခဲ့သ<များ&Kင့် ေလ့လာသင်ယ<ခဲ့သ<များသည် အခက်ခဲဆံ(းအချိန်များ&Kင့် ရင်ဆိ(င်ခဲ့ရသည်ကိ( က[&်(ပ်တိ( ့ နာကျင်စိတ်မေကာင်းစွာ သတိြပXမိပါသည်။ ထိ(အေြခအေနများ အဆံ(းသတ်သွားခဲ့ေသာ်လည်း ဥပေဒ ေကျာင်းများသည် ယင်းတိ( ့ နစ်နာဆံ(း;hံးခဲ့ရမhများအေပn ြပန်လည်ြပXြပင်တည်ေဆာက်ရန် အချိန်အနည်းငယ် ယ<ရပါလိမ့်မည်။ က[&်(ပ်တိ( ့ ;hြမင်သေလာက်ဆိ(လjင် ပဋိညာ0ဥပေဒအေoကာင်း စ0းစားြခင်း &Kင့် ေရးသားြခင်းတွင် ယခင်က အကန် ့အသတ်NKိခဲ့သည့်အတွက် ြမန်မာဥပေဒကိ( အသံ(းချ၍ မည်မjပင် လ(ပ်ေဆာင်&ိ(င်သည်ကိ( ယေန ့မျိXးဆက် ဆရာများ &Kင့် ေကျာင်းသားများက ဖွင့်ဟထ(တ်ေဖာ် ြပသရေကာင်း ြပသရပါမည်။ ဤစာအ(ပ်သည် တကUသိ(လ်များတွင် အလ(ပ်လ(ပ်ေနoကသ< အားလံ(းအတွက်
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